#### Commonwealth *ex rel.*Attorney-General *versus*Dillon, *et al.*
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1. A quo warranto was issued against the directors of a corporation on an information of the attorney-general, who, *pendente*lite, proposed to discontinue ; persons claiming to have an interest applied to amend by suggesting their interest and to be substituted as relators instead of the attorney-general. *Held,*That the amendment could not be allowed.

2. Statutes of amendment are to be liberally construed, hut are not to be extended beyond their intent and spirit.

3. Neither the words or spirit of the act of May 4th, 1852 (amendments), authorize the introduction of new parties arbitrarily and *ad*libitum,- it must appear that a mistake has been made.

4. The mistake is not confined to mere mistake of fact as provided by the act of April 16th, 1846, hut an amendment may be made where the action is in the name of a wrong party by mistake of law.

5. The power of amendment does not exist where there is no mistake in fact or law, for the purpose, by way of amendment, to give a party the advantage of a proceeding commenced by another.

6. Quo warranto is in the nature of a writ of right for the Commonwealth against one who usurps or claims any franchises or liberties.

7. When the writ is issued on the information of the attorney-general it is for a public wrong, when by a private relator it is to redress .a private injury; though the object is the same, they are instituted on different grounds.

8. A mere stranger who has no interest in a corporation, except that common to every citizen, cannot have the writ; he must show some interest to be affected or wrong to be redressed.

9. Upon a motion to quash the writ, the court will consider not only the *42legal questions involved, hut also the questions of justice and the propriety of the proceeding.

10, It is too late to move to quash after pleading to the information.

11. Commonwealth *v.*Burrell, 7 Barr, *34;*Commonwealth *v.*Jones, 2 Jones, 365; Commonwealth *v.*Philadelphia, Germantown, and Norristown Railroad, 8 Harris, 518 ; Murphy *v.*Farmers’ Bank of Schuylkill County, 8 Harris, 415, cited.

March, 1870.

Before Thompson, C. J., Agnew, Sharswood, and Williams, JJ.

This proceeding was a quo warranto, No. 138, to'July Term, 1868, issuecl out of the Supreme Coiirt in the Eastern District on the 22d of June, 1868 on the information of the Hon. Benjamin Harris Brewster, Attorney-General of the Commonwealth, against Sidney Dillon, John B. Alley, Rowland G. Hasard, Oliver W. Barnes, Charles M. Grisky, Thomas Rowland, J. M. S. Williams, and Charles M. Hall.

The information set out, that the Pennsylvania Fiscal Agency was incorporated by an act of Assembly approved November 1st, 1859, set out in the information.

Section 1 of the act appointed Samuel J. Reeves and a number of other persons commissioners, to receive subscriptions and organize a company under the above name to be a corporation, etc.

Section 2. The purpose of the act was to organize a corporation to become an agent for purchase and sale of railroad bonds and other securities, and to perform various ■other financial transactions specified in the 2d section of ithe act.

Section 3 fixed the capital stock at 50,000 shares at $100 each, and when 5000 shares should have been subscribed .and 5 per cent, thereon paid, the shareholders might elect ■five or more directors to exercise all the power of the corporation.

Section 4 provides that the by-laws should prescribe the manner in which the officers and agents of the company ■should be chosen and should designate their power and ■duties, their term of service, and compensation, etc.

Section 5. Three-fifths of the directors should be citizens ■of the United States, and a majority of the whole should •reside in Pennsylvania,

Section 6 provided for the payment of a bonus to the Commonwealth, and taxes.

The information further set out, that a meeting of the ■commissioners was held in Philadelphia, November 5th, 1859, and the books of subscription were then opened, that the whole amount of stock was then subscribed; Duff Green, ¡amongst other subscriptions, subscribing for 5000 shares. He *43on the same day paid $25,000, being 5 per cent, on his subscription. On the same day the commissioners certified the organization of the corporation, the certificate stating the names of the subscribers for the stock, the respective amounts subscribed for by each, and the payment by Duff Green of 5 per cent, on his subscription. On the same day the stockholders resolved that the directors should be five, who should remain in office until the election of others, under the by-laws. At the same time certain by-laws were passed, and Duff Green, David R. Porter, Jacob Ziegler, Oliver W. Barnes, and Samuel R. Brooks, were elected directors of the corporation. At a meeting of the directors, on the same day, Duff Green wTas elected president, William Halsted, treasurer, and Oliver W. Barnes, secretary. By means of the premises the Pennsylvania Fiscal Agency became, and ever since has been, a duly incorporated body politic, etc.

The information further set out, that by an act of Assembly of March 26th, 1864, the name of the corporation was changed to the “ Credit Mobilier of America.”

That Oliver W. Barnes, about May, A.D., 1863, with Charles M. Hall and Samuel J. Reeves, pretending to act as commissioners under the first-mentioned act, and with proxies from other commissioner’s under authorizations executed before and exhausted in the original organization, and without a majority of the commissioners named in the act being present or duly authorized by proxy, and without any warrant or lawful authority, opened other subscription books for stock of said corporation, and received subscriptions from Oliver W. Barnes and others (naming the persons and the amounts subscribed by them respectively), to the amount of 5329 shares, and on the 1st of June, 1863, fraudulently and without any authority applied to the governor of Pennsylvania to issue letters patent, and fraudulently and by deceitfully concealing from him the first-mentioned exercise of their powers by the commissioners, etc., procured him, without any warrant or lawful authority, to issue to the persons who last subscribed for stock, letters patent by the name of the Pennsylvania Fiscal Agency. That afterwards, the last subscribers, without any lawful authority, elected directors and adopted by-laws, the directors being the defendants in this bill. Sidney Dillon was elected president, and Oliver W. Barnes, secretary, and other officers were also elected, which said directoi’s, president, secretary, etc., had since claimed to act as such without any warrant or lawful authority under and in virtue of the illegal acts of said commissioners and void letters patent, and *44to use and claim divers rights, franchises, etc., of the corporation intended to be given by said acts of Assembly, and that Sidney Dillon and the other defendants against the Commonwealth had and did usurp, etc.

Whereupon the said attorney-geueral for the Commonwealth prays process against the defendants to answer, etc., by what warrant they claim to have and exercise, étc., the franchises, etc., aforesaid.

The defendants pleaded several pleas to which the attorney-general demurred. Pending the demurrer, the attorney-general proposed to discontinue the proceeding, and certain persons claiming an interest in it asked that they might be allowed to amend the information by suggesting their interest, and having their names inserted as relators, instead of the attorney-general.

In this case the reporter received no paper-books except those containing the information and the attorney-general’s argument on the demurrer.

Mr. Justice Sharswood delivered

the opinion of the court, March 24th, 1870.

This is a quo warranto issued June 22d, 1868, on the allowance of the chief justice, upon an information filed by. the attorney-general. The Commonwealth, through its law officer the present attorney-general, being desirous to discontinue the proceeding, this application is made on be: half of certain persons, asking to be allowed to file a suggestion of their title by way of amendment to the information, and that their names may be inserted as relators in the place of the attorney-general. This amendment is asked under the second section of the act of May 4th, 1852 (Pamphlet L. 574), which invests the courts with power “ in any stage of the proceedings to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party.”

Statutes of amendment are undoubtedly to receive a liberal construction, but they are not to be extended beyond their true intentand spirit. Neither by the words nor the spirit of the act of 1852 can .new parties be introduced arbitrarily, and *ad libitum.*It must appear that a mistake has been made. It has been held, and rightly held, that this is not confined to a mere mistake of fact in the name of the party. That had been before fully provided for by the second section of the act of April 16th, 1846 (Pamphlet L. 853). An action may be commenced in the name of a wrong party by a mistake of law, and the legislature meant the power of amendment to extend to that case. Thus, in the common instance of the assignee of a chose in action suing in his own name, he *45will be allowed to substitute the name of the assignor, and there are other examples analogous to this : Kaylor *v.*Shaffner, 12 Harris, 489 ; Druckenmiller *v.*Young, 3 Casey, 97 ; Robertson *v.*Reed, 11 Wright, 115; Barnhill *v.*Haigh, 3 P. F. Smith, 165. But it would be a most violent and unjustifiable construction to apply the enactment to a case, where there has been no mistake of fact or law, but where it is proposed by means of an amendment to give to one party the advantage of a proceeding really commenced by another. Logically carried out, it would lead to strange consequences. . Thus, if a person, having neither legal nor equitable title, should commence an action for a trespass to land or goods, this doctrine would permit a third person, it may be having such title, but who had nothing to do with the original institution of the suit, and who is in no privity with the plaintiff, to come in and take his place. To speak of nothing else, how is the defendant to avail himself of the statute of limitations against his 'new antagonist, if. it had not been before the suit was commenced? Must he pay costs to both parties, if he is finally unsuccessful against the newcomer? Indeed, if we look at the matter more closely, such an amendment necessarily introduces a new and .different cause of action, though the trespass may be the same, and the only change required to be made in the pleadings be in the name of the party. The first action complains of an injury to the original plaintiff; the amendment turns the same act or wrong into an injury to another. It is not always wise to generalize upon such subjects, but it must be an extraordinary case which would justify a court under this statute to introduce a new party, not claiming under nor in privity with the original plaintiff. We do not say that there can be no such case, but certainly it is not this one.

A quo warranto is in the nature of a writ of right for the Commonwealth against him who usurps or claims any franchises or liberties to say by what authority he claims them: 7 Comyn’s Digest, 190, Quo Warranto A. It may issue upon the suggestion of the attorney-general, by way of information, or of private relators. The distinction between these two modes of proceedings under our common law, which adopted the English Statute of 9 Anne, c. 20, and our act of June 14th, 1836 (Pamphlet Laws, 631), has been shown in elaborate opinions in the Commonwealth *v.*Burrell, 7 Barr, 34 ; Commonwealth *v.*Jones, 2 Jones, 365; and Murphy *v.*Farmers’ Bank of Schuylkill County, 8 Harris, 415. The one is for a public wrong, the other for the redress of private injuries. Though their end or object may be the same, they *46are instituted on different *grounds,*— diverso *intuitu. A*mere stranger, who has no interest in a corporation, except that which is common to every citizen, is not entitled to the writ; he must show some interest to be, affected, or that he suffers some wrong to be redressed by it: Commonwealth *v.*The Philadelphia, Germantown, and Norristown Railroad Company; 8 Harris, 518. Upon the motion to quash the writ, which has been substituted for the old practice of a previous rule to show cause why it should issue, Murphy *v.*Farmers’ Bank of Schuylkill County, 8 Harris, 415, the court will consider, not merely the legal questions which may be involved, but the broad questions of the justice and propriety of the proceeding : Commonwealth *v.*Jones, 2 Jones, 365. It is too late to make such a motion after pleading to the suggestion. If we have the power under the act of 1852, which, to say the least, is doubtful, we think that we are not bound to allow the amendment, and that it would not be the exercise of a sound legal discretion to permit it in this case.

Rule discharged.